#PNDT - A Compliant filed by the AA one month before taking his charge officially, bad in Law hence dismissed and Doctors got acquitted. Adv. ROHiT ERANDE. ©

 #PNDT - A Compliant filed by the AA one month  before taking his charge officially, bad in Law hence dismissed and Doctors got acquitted.

It is very easy to punish Doctors, but who will change the obsessive mindset of the Society  of having "Vansh ka  chirag" ? 

The famous adage "IF MEN ARE PURE LAWS ARE USELESS, IF MEN ARE CORRUPT, LAWS ARE BROKEN" is perfectly applicable in PNDT Cases. 

Adv. ROHiT ERANDE. ©

Case Details :

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.

CRM-M-55856-2018

Date of Decision:- 19.09.2022

Usha. V/s  State of Haryana & Anr.

judgment Link :

https://phhc.gov.in/enq_caseno.php?case_id=ZnBILzFkcElKNmg0V2p5YmdoNlBPaDhmYkkydU9GWEc1MEJhYnE2TVp4RT0=

file:///E:/My%20Documents/Downloads/CRM-M_55856_2018_19_09_2022_FINAL_ORDER%20(1).pdf

CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI

Facts in Short :

1. The petitioner-Usha, alleged as the Agent of the Doctor,  in this petition filed under Section 482 Code of Criminal Procedure (for short, 'Cr.P.C.') has sought quashing of Complaint Case No. COMA/0000135/2015 dated 12.08.2015 (Annexure P- 1), titled “State of Haryana through Dr. Ramesh Kumar vs. Dr.Sona Goel and another” instituted for offence punishable under Section 28 of Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short 'PNDT Act'), pending in Court of Judicial Magistrate Ist Class, Yamunanagar, 

2. It was alleged that on receipt of a complaint that sex determination tests were being conducted at S.P. Hospital, opposite Saraswati Vidya Mandir School, Chhachhrauli Road, Jagadhari, a decoy patient was sent to verify the fact and it was found that clinic was ready to do sex selection/determination test.

3. On 31.07.2015, Deputy Commissioner, Yamunanagar directed Tehsildar, Deputy Civil Surgeon, Yamunanagar, DCWO and one police officer to conduct a raid on the hospital. The team took assistance of a decoy patient, namely, Asha by giving her 34 currency notes of the denomination of Rs.500/- each (total Rs.17,000/- having short signatures of Dr.Vijay Dahiya and DSP Madan Lal). She was directed to go to Dr. Sona Goel in the hospital and on paying Rs.17,000/- asked her (Dr. Sona Goel) to determine the sex of the foetus in her body. Proceedings qua Dr. Sona Goel stands quashed vide order dated 14.09.2018.

3. The decoy patient contacted accused no. 2-Usha (the present petitioner), agent of accused no. 1. The petitioner took her to the clinic of Dr. Sona Goel within the premises of S.P. Hospital, Jagadhari, where Dr. Sona Goel received Rs.17,000/- and returned Rs.2000/- as concession. She filled a form and started doing tests for determination of sex of the foetus in the body of the decoy patient on her sonography machine. The raiding party entered and raided the clinic, where the sex determination test was going on. The team also recovered a film of USG of the decoy patient and Rs.15,000/- from Dr. Sona Goel. Remaining Rs.2000/- were also collected from the decoy patient. On verification it was found that these were the same currency notes, which were having signatures of Dr. Vijay Dahiya and DSP Madan Lal. The raiding party took into possession Form-F of the decoy patient, her incomplete ultrasound, OPD slip with carbon copy, ultrasound print recovered from USG machine of petitioner, ultrasound record register, PNDT inspection form. 

4. The Learned Magistrate on perusal of the complaint found a prima facie case to proceed against petitioner and her co-accused and both were ordered to be summoned to face trial for offence punishable under Section 23 of the PNDT Act.

5. The main grievance of the petitioner is that the complaint has not been filed by the competent authority. It was contended that the  District Appropriate Authority-cum-Civil Surgeon, Yamunanagar, who was authorized to institute and conduct all proceedings in connection with the complaint against the petitioner and her co-accused, had retired on 31.07.2015 and there was no order authorizing Dr. Ramesh Kumar, Senior Medical Officer, Civil Hospital, Yamunanagar to take charge of Civil Surgeon and act as District Appropriate Authority under the PNDT Act. The raid was conducted on the day the Civil Surgeon Dr. V.P. Mann had retired. The complaint was filed by Dr. Ramesh Kumar in his capacity as Civil Surgeon on 12.08.2015. At that time he was neither a Civil Surgeon nor District Appropriate Authority under the PNDT Act. This fact is clear from perusal of the order passed by Principal Secretary to Government of Haryana, Health Department dated 09.09.2015 and information taken under the Right to Information Act (Annexure P-5). 

It was further alleged that Conducting of raid and filing of complaint by Dr.Ramesh Kumar is the result of enmity between Dr. Ramesh Kumar on one hand and Dr. Anoop Goel, husband of Dr. Sona Goel, who was also posted in Civil Hospital, Yamunanagar, on other hand. Just to harass and humiliate Dr. Anoop Goel, Dr. Ramesh Kumar on the day of retirement of the Civil Surgeon manipulated the raid and filing of complaint against the accused. 

The facts as stated in complaint were also not correct as the decoy customer Asha approached Dr. Sona Goel as a normal patient. It was her 4th gravida and as per medical science it was a high risk pregnancy. She was having 2½ – 3 months pregnancy and expected date of delivery was 17.02.2016. After preparing the prescription slip, she was advised ultrasound to check foetal well being and mortality as she wanted the complete package of her check up and delivery in the hospital of Dr. Sona Goel. Second copy of prescription was also prepared to send the same to the Civil Surgeon. Two copies of Form-F of the decoy customer were prepared, as such, all the required formalities were completed in duplicate so that one copy may be sent for the record of Civil Surgeon as per requirements of PNDT Act. Even at the stage of 10 to 12 weeks of pregnancy, the sex of a child in the womb cannot be determined.

Held :

1. A vital question, which arises for consideration in this petition, is as to whether complaint has been filed by a competent person. Section 28 reads as follows:-

“28. Cognizance of offences – (1) No court shall take cognizance of an offence under this Act except on a complaint made by -

(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or the State Government, as the case may be, or the Appropriate Authority; or

(b) xx xx xx xx”

2. It is admitted that Dr. V.P. Mann, Civil Surgeon, Yamunanagar had retired on 31.07.2015. It is also not disputed that Dr. Ramesh Kumar took the charge of Civil Surgeon on 10.09.2015. The present complaint was filed by him in his capacity as Chairman, District Appropriate Authority-cum-Civil Surgeon, Yamunanagar on 12.08.2015 i.e. much prior to the day he took charge as Civil Surgeon. As per notification issued by the Haryana Government, as per power conferred under Section 17 (2) PNDT Act, the District Appropriate Authority comprise of Civil Surgeon-cum- Chairman, District Attorney and POICDS. 

3. The Information sought under RTI act also revealed that :

“1. Point No. 1 – There was no order of Government of Dr. Ramesh to take over the charge of Civil Surgeon on 31st July, 2015. But Dr. V.P. Mann who retired as Civil Surgeon on dated 31st July, 2015 handed over the charge to Dr. Ramesh who was the senior most in the district.

2. Point no. 2 – Yes, there was an order of Principal Secretary to Government, Haryana allowing Dr. Ramesh to join as Civil Surgeon including the work of PNDT Act which was issued on dated 09.09.2015 and received in this office on dated 15.09.2015.”

4. The Hon. Judge thus observed that from the above documents it clearly shows that Dr. Ramesh Kumar was neither Civil Surgeon nor Chairman, Appropriate Authority and, as such, was not competent to participate in the meeting of District Appropriate Authority or to take any decision on behalf of the District Appropriate Authority, Yamunanagar. 

Secondly, Chairman of District Appropriate Authority-cum-Civil Surgeon, Yamunanagar was authorized to institute a complaint against the accused and Dr. Ramesh Kumar, who had not been appointed as Civil Surgeon, was not competent to file complaint on 12.08.2015.

5. It was further held that as a sequel of the above discussion, it is apparent and abundantly proved on record that Dr. Ramesh Kumar was not competent to file the complaint dated 12.08.2015 and cognizance of the same taken by Additional Chief Judicial Magistrate is barred under Section 28 of PNDT Act and as a result of which it was held that the complaint filed and cognizance of the same taken by the learned Magistrate has resulted in abuse of the process of law and same is liable to be quashed. 

I really fail to understand, inspite Law being very clear and inspite of many judgments of various High Courts that a compliant can be filed by a competent Person, why such incidents are happening. Further, important aspects or allegations in this case are that enmity between the alleged AA and husband of the Accused Doctor lead to the compliant. Further, the decoy patient was the regular patient of the Doctor. IF these allegations are true, then its' very difficult for doctors to perform USGs. Many Doctors have started openly saying that they may avoid USG of pregnant women. So, Ultimately, who's at loss ? Those Doctors who undergo sex determination should be punished, no doubt. But its equally true that, it is very easy to punish Doctors, but who will change the obsessive mindset of the Society  of having "Vansh ka  chirag" ? The famous adage "IF MEN ARE PURE LAWS ARE USELESS, IF MEN ARE CORRUPT, LAWS ARE BROKEN" is perfectly applicable in PNDT Cases. 

Thanks and Regards,

Adv. ROHiT ERANDE

Pune. ©